1. The decree for specific performance of an agreement for sale, is under challenge by the defendant.

2. Ext.A1 is the agreement dated 14.01.2008, executed between the plaintiff and the defendant. Under Ext.A1, the plaint schedule property was agreed to be conveyed by the defendant to the plaintiff. The consideration fixed was Rs.6,000/- per cent. The period fixed for performance was 4 months. An amount of Rs.3,00,000/- was payable on or before 25.01.2008 towards advance sale consideration. Alleging failure on the part of the defendant to perform the agreement, the suit was filed.

3. While admitting Ext.A1, the defendant challenged the readiness and willingness of the plaintiff to perform the agreement. It was contended that the plaintiff was not possessed of sufficient funds to take Ext.A1 forward.

4. The trial court upheld the readiness and willingness of the plaintiff, and granted a decree for specific performance.

5. We have heard Shri.Sreelal Warrier, the learned counsel for the appellant-defendant and Shri.Jamsheed Hafiz, the learned counsel for the respondent-plaintiff.

6. The points that arise for determination in this appeal are;

                  (i) Is the frame of the suit bad for non-compliance with the form prescribed under the Code of Civil Procedure?

                  (ii) Ext.A1 having provided damages as the consequence of its breach, is the plaintiff entitled to maintain a suit for specific performance?

                  (iii) Does the materials on record establish the readiness of the plaintiff to perform Ext.A1 agreement?

                  (iv) Does the decree and judgment of the trial court warrant any interference?

7. The learned counsel for the appellant challenged the frame of the suit alleging, non-conformity with Forms 47 and 48 in Appendix-A of the Code of Civil Procedure. Specific reference was made to the paragraph mentioning about a demand to perform and its refusal.

8. Order VI Rule 3 CPC deals with Forms of pleadings. It reads thus,

                  “3. Forms of pleading.— The forms in Appendix A when applicable, and where they are not applicable forms of the like character, as nearly as may be, shall be used for all pleadings.”

                  Procedure is the handmaid to the substantive rights of the parties [Sukhbir Singh v. Brij Pal Singh (1997) 2 SCC 200]. The Forms prescribed are, procedural. What is required is not a verbatim reproduction of the Forms given in the Appendix but, the plea of the essential facts indicated in the Forms. In Ramesh Chandra Chandok v. Chunilal Sabharwal (dead) by Lrs (AIR 1971 SC 1238), it was held that the requirements set out in the Form is not to be interpreted in a narrow hyper technical manner, and that it is the substance which is of importance. The Forms 47 and 48, relate to pleadings in a suit for specific performance. In Govindan V. Ulahannan [1987 (2) KLT 513] it was held that the pleadings in a suit for specific performance must strictly confirm with the requirements of the Forms in Appendix A. Therein, this Court relied on the judgment of the Apex Court in Ouseph Varghese v. Joseph Aley & ors. [(1969) 2 SCC 539]. The view was reiterated in Abdul Khader Rowther v. P.K.Sara Bai & ors. [(1989) 4 SCC 313].

                  In Sukhbir Singh v. Brij Pal Singh (AIR 1996 SC 2510) the Apex Court held that it is the substance of the plea that is relevant. It was held,

                  “What requires to be considered is whether the essential facts constituting the ingredients in Section 16 (1) (c) of the Act were pleaded and that found mentioned in the said Forms do in substance point to those facts. The procedure is the hand-maid to the substantive rights of the parties.”

                  In Krishnan Kesavan v. Kochukunju karunakaran (AIR 1988 Ker.107) this Court held,

                  “Forms 47 and 48 in Appendix-A to the Code prescribe the forms in specific performance suits. Those forms provide for specific pleadings of readiness and willingness and demand for performance and its refusal. But O.6 R.3 says that compliance of forms as nearly as may be will be sufficient. The forms could only be read along with O.6 R.3 and not word by word. Compliance of the forms is not what is absolutely necessary in the pleadings though it is always desirable in order to enable the courts to arrive at the truth and do justice. Justice should not be allowed to suffer merely for the noncompliance in the highly technical sense.”

                  The above judgment was relied on in K.Chekkunni v. Ahammed @ Ahammed Kutty [(1991) 2 KLJ 783]. Therein, this Court referred to the judgments in Govindan v. Ulahannan (supra) and Abdul Khader Rowther v. P.K.Sara Bai & ors. (supra) and held, “On going through those decisions, I do not find that any different principle was laid down, but on the construction of the pleadings in the respective cases their Lordships came to the conclusion that there is no sufficient compliance with Sec.16 (c) or the forms mentioned in the C.P.C.” To sum up, it is not a mere replication of the Form that is contemplated but, its substance, adapted to the facts of each case.

9. A reading of the plaint herein would reveal that the necessary ingredients in a suit for specific performance, including the plea of continued readiness and willingness of the plaintiff, and the refusal on the part of the defendant to perform, have been explicitly pleaded. Even with regard to demand and refusal, we find that the plaint contains specific averments regarding the same. Whether it has been proved is a different aspect. Hence we find the contention referring to Appendix A, to be devoid of merits.

10. It is next argued by the learned counsel for the appellant that, Ext.A1 agreement provides for the consequence of the breach of the agreement as, entitlement for damages. The parties having consciously agreed for damages to be the consequence for breach of the agreement, the suit for specific performance could not be maintained, it is contended.

11. We find the argument as lacking substance. Section 23 of the Specific Relief Act, 1963 reads thus:

                  “23. Liquidation of damages not a bar to specific performance.— (1) A contract, otherwise proper to be specifically enforced, may be so enforced, though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same, if the court, having regard to the terms of the contract and other attending circumstances, is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance.

                  (2) When enforcing specific performance under this section, the court shall not also decree payment of the sum so named in the contract.”

                  It is well settled that, what Section 23 contemplates is, if the parties intended payment of damages as a substitute for or in lieu of performance, then alone a claim for specific performance could be challenged. The agreement must contain a language of election, entitling the party to discharge the bargain by payment of damages. The mere absence of a clause in the agreement, providing to seek for performance, is of no consequence. (See: M.L.Devender Singh & ors. v. Syed Khaja [(1973) 2 SCC 515], Man Kaur (DEAD) by LRs. v. Hartar Singh Sangha [(2010) 10 SCC 512], Kamal Kant Jain v. Surinder Singh (DEAD) through LRs.[(2019) 11 SCC 432], Jaspal Singh v. Ashwani Kumar [2026 KHC(Online) 6520]). In Man Kaur, the Apex Court explained the law thus:

                  “29. We may attempt to clarify the position by the following illustrations (not exclusive);

                  (A) The agreement of sale provides that in the event of breach by the vendor, the purchaser shall be entitled to an amount equivalent to the earnest money as damages. The agreement is silent as to specific performance. In such a case, the agreement indicates that the sum was named only for the purpose of securing performance of the contract. Even if there is no provision in the contract for specific performance, the court can direct specific performance by the vendor, if breach is established. But the court has the option, as per Section 21 of the Act, to award damages, if it comes to the conclusion that it is not a fit case for granting specific performance.

                  (B) The agreement provides that in the event of the vendor failing to execute a sale deed, the purchaser will not be entitled for specific performance but will only be entitled for return of the earnest money and/or payment of a sum named as liquidated damages. As the intention of the parties to bar specific performance of the contract and provide only for damages in the event of breach, is clearly expressed, the court may not grant specific performance, but can award liquidated damages and refund of earnest money.

                  (C) The agreement of sale provides that in the event of breach by either party the purchaser will be entitled to specific performance, but the party in breach will have the option, instead of performing the contract, to pay a named amount as liquidated damages to the aggrieved party and on such payment, the aggrieved party shall not be entitled to specific performance. In such a case, the purchaser will not be entitled to specific performance, as the terms of the contract give the party in default an option of paying money in lieu of specific performance.”

                  There is nothing in Ext.A1 to indicate that the parties intended to give up the right to seek for specific performance. The relevant clause in Ext.A1 read thus:

                 

                  Evidently, there is no waiver of right to seek for specific performance, or an option to pay damages in lieu of performance. On the contrary, all the legal remedies upon Ext.A1 are expressly reserved. We find that the suit for specific performance is maintainable.

12. The cardinal issue for determination is with regard to the readiness of the plaintiff to perform Ext.A1 agreement. In a suit for specific performance, it is bounden upon the plaintiff to prove his continued readiness and willingness from the date of the date of the agreement till decree [See N.P. Thirugnanam v. R. Jagan Mohan Rao, (1995 (5) SCC 115), C.S. Venkatesh v. A.S.C. Murthy (Dead) by Legal Representatives and Others (2020 (3) SCC 280), Janardan Das & Ors v. Durga Prasad Agarwalla & Ors (2024 (19) SCC 276), Sangita Sinha v. Bhawana Bhardwaj and Others (AIR 2025 SC 1806)]. It is for the plaintiff to prove his readiness during the relevant periods including the currency of the agreement. Ext.A1 is dated 14.01.2008. The period fixed for performance was four months, which expired on 14.05.2008. On consideration of the various circumstances obtaining in the case, which are being noticed hereunder, we find that the plaintiff has failed to prove his readiness to perform Ext.A1 during the currency of the agreement.

13. To prove the availability of funds, the plaintiff has relied on Ext.A3, his Bank account statement. However, going by Ext.A3, during the currency of the agreement namely, from 14.01.2008 to 14.05.2008, he was not having enough funds to pay the balance sale consideration. While in March, 2008, the maximum amount available with him was Rs.3,339/-, the maximum amount available on 13.05.2008 was Rs.1,83,339/-. The balance sale consideration payable would be approximately Rs.3,42,000/-. Therefore, Ext.A3 is of no avail to the plaintiff to prove the availability of funds during the currency of the contract.

14. As PW1, the plaintiff deposed that he had the necessary records at home to prove the availability of funds. However, no material is produced. His deposition reads thus:

                 

                  The attempt to prove the availability of funds through Ext.A3, failed. Though he claimed that other documents were available with him to establish the availability of funds, none are produced. Herein, it is also relevant to note that, while the defendant as DW1 was cross-examined, the suggestion put to him was that Ext.A3 reveals the availability of the balance sale consideration with the plaintiff; no other source is suggested.

                  The relevant portion reads thus:

                 

                  Thus, there is no material to find that the plaintiff had the required funds during the period stipulated in Ext.A1, for its performance.

15. At paragraph 3 of the plaint it is pleaded that, after execution of Ext.A1 the plaintiff had approached the defendant with the entire balance sale consideration. As per Ext.A1, the consideration payable was, at the rate of Rs.6,000/- per cent, for the extent found to be available on measurement. The relevant sentence reads thus;

                

                  Though the plaintiff as PW1 would depose that the property was measured, he was unable to state as to when it was measured. The surveyor, if any, who measured the property, is not examined. The defendant as DW1 categorically denied of any measurement having been carried out. He deposed “പş1ക mസ അളm1ş1ല.”. The learned counsel for the respondent relied on the plea at paragraph 8 of the written statement that, consequent to the non-performance by the plaintiff, the defendant sustained damages under various heads including the amount paid to the private surveyor, to contend that there is admission regarding measurement of the property. As we have noticed, DW1 has in his evidence categorically denied about measurement. Further, the plaint averments does not mention that the property was measured. No evidence is adduced by the plaintiff to establish that the property was measured. This is of significance since, the balance consideration payable is based on the extent to be found available on measurement. When there has been no measurement, the balance sale consideration could not be calculated. Therefore, the case of the plaintiff that he had approached the defendant for payment of the balance sale consideration is, improbable.

16. Incidentally it is also relevant to note that, though Ext.A1 agreement was entered into between the parties on 14.01.2008, no advance amount was paid on the said date. The agreement only stipulated for payment of advance amount of Rs.3,00,000/- on or before 25.01.2008, suggesting that, the plaintiff did not have the amount with him on the date of Ext.A1.

17. According to the plaintiff, after Ext.A1 though he had approached the defendant with the entire balance sale consideration, he was told that he is to travel abroad and would be back by 17.05.2008, on which date, the sale deed would be executed. If the plaintiff had approached the defendant with the entire balance sale consideration, the execution of sale deed would not have been postponed since all that the defendant had to do was to sign the document. The explanation attempted, is difficult to be accepted.

18. The mere fact that, on 16.05.2008 the plaintiff purchased Ext.A2 stamp papers worth Rs.20,000/-, is not sufficient to find the readiness of the plaintiff especially in the light of our finding that the plaintiff was not possessed of sufficient funds to pay the balance sale consideration. For the very same reason, the mere fact that one-half of the total sale consideration was paid pursuant to Ext.A1 is also of insignificance.

19. The learned counsel for the respondent-plaintiff would argue that, the defendant as DW1 has admitted that immediately on execution of Ext.A1 he went abroad. Therefore, the contention that no notice was sent by the plaintiff calling for performance or that the plaintiff did not approach the defendant for measurement of the property and for execution of the sale deed, etc., are inconsequential, it is contended. However, as was noticed earlier, it is the definite averment in the plaint that after the execution of Ext.A1, the plaintiff had approached the defendant with the balance sale consideration. If that be so, it cannot be said that, immediately after Ext.A1, the defendant left. The defendant's case appears to be that, since the plaintiff failed to perform the agreement even till 13.05.2008, he went abroad. At any rate, this may not be of much significance in the light of our finding that the plaintiff has failed to prove the availability of funds with him to pay the balance sale consideration during the currency of the contract.

20. On the discussions as above, we find that the plaintiff has failed to prove his continued readiness and willingness to perform the agreement, which is a necessary mandate of Section 16 (c) of the Specific Relief Act, to seek for a decree for specific performance. Hence, the plaintiff is not entitled for a decree for specific performance. The decree and judgment of the trial court are thus liable to be set aside.

21. The plaint contains an alternate relief for return of the advance sale consideration with interest. But for a plea, there is no evidence to find that the defendant suffered any damages consequent on the breach. Therefore, the defendant is bound to return the advance sale consideration, with interest. Considering the entire facts and circumstances and also the prevailing rate of interest in Banking transactions, we are of the opinion that interest can be awarded at the rate of 9% per annum from the date of payment (25.01.2008) till the date of decree, and thereafter at the rate of 6% per annum.

                  In the result, the appeal is allowed in part. The decree for specific performance is set aside. The suit will stand decreed allowing the plaintiff to realise Rs.3,00,000/- with interest at the rate of 9% per annum from the date of payment (25.01.2008) till the date of decree, and thereafter at the rate of 6% per annum till realisation. The plaintiff shall be entitled for proportionate costs throughout.